Search This Blog

Wednesday, December 24, 2008

Court of Appeals Holds French Prenuptial Agreement Opting out of “Community Property” Scheme in Favor of a “Separation of Estates” Regime Constituted Waiver of Equitable Distribution. Error to Preclude Recovery of Counsel Fees to Oppose Affirmative Defense Predicated on Prenuptial Agreement.

In Van Kipnis v Van Kipnis, --- N.Y.3d ----, 2008 WL 5244630 (N.Y.) the Court of Appeals held that the parties' foreign prenuptial agreement precluded the equitable distribution of certain property under New York law, affirming the courts below. Plaintiff wife and defendant husband were married in France in 1965. At the time of the parties' marriage, the wife was a Canadian citizen from Quebec studying at the Sorbonne and husband was a citizen of the United States, having recently completed college. Prior to the marriage ceremony, wife had a "Contrat de Mariage" drafted under the French Civil Code and arranged for legal counsel to explain the terms of the prenuptial agreement in English to husband. The agreement was executed by the parties on September 30, 1965. Under the provisions of the Contrat de Mariage, the parties opted out of the community property scheme (the governing custom in France) in favor of a separation of estates regime. In relevant part, the agreement provided: "The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. "Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. "They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. "The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction." After the wedding, the parties moved to New York where they resided during their38-year marriage. The Husband was employed in finance while wife worked as a professor at Cooper Union and later as a cultural counselor for the Quebec government. The Wife was also the primary caretaker of the parties' two children, now emancipated. Throughout their marriage, the parties maintained separate accounts and assets, with the exception of the joint ownership of their two homes--a $625,000 house in Massachusetts and a cooperative apartment in Manhattan valued at $1,825,000. In 2002, the wife commenced an action for divorce and ancillary relief. Before trial, Supreme Court granted husband's motion to amend his answer to assert the 1965 prenuptial agreement as a defense to wife's equitable distribution claims. Supreme Court appointed a Special Referee to conduct a hearing on the issues of equitable distribution, maintenance and counsel fees. The Referee determined that the French contract provided for the separate ownership of assets held in the parties' respective names during the course of the marriage. As a result, the husband retained his liquid assets of approximately $7 million and wife kept her assets ranging from $700,000 to $800,000. As to the jointly held properties, which the parties agreed were subject to equitable distribution, the Referee recommended that the wife be awarded the Manhattan apartment, together with $75,000 in reimbursement for repairs, and that the husband be awarded the country home in Massachusetts. The Referee proposed that the wife receive $7,500 per month in maintenance until either husband or wife dies or the wife remarries. The Referee concluded that legal fees expended in connection with wife's challenge to the prenuptial agreement were not compensable under Domestic Relations Law 237. After deducting that portion of wife's claim for counsel fees attributable to contesting the agreement, the Referee awarded wife $92,779.57 in attorneys' fees. Supreme Court confirmed the Referee's report. The Appellate Division affirmed , with one Justice dissenting. The Court of Appeals modified. The Court of Appeals rejected the wife’s contention that all of the parties' property should be subject to equitable distribution under Domestic Relations Law 236(B)(5) because the 1965 agreement, drafted and executed in France, was intended to apply to property ownership during the course of the marriage, but not to the distribution ofproperty in the event of a divorce. In her view, the primary purpose of theagreement was for each spouse to avoid liability for the other's debts. The Court of Appeals noted that it is well settled that duly executed prenuptial agreements are generally valid and enforceable given the "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 N.Y.2d 188, 193 [2001]. Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), enacted in 1980 as part of New York's Equitable Distribution Law. The statute provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage marital property must be distributed equitably between the parties while separate property shall remain separate. As relevant here, separate property is defined to include "property described as separate property by written agreement of the parties pursuant to subdivision three of this part" . Under the statute, a prenuptial agreement may include a "provision for the ownership, division or distribution of separate and marital property" and is valid and enforceable if it "is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law 236[B][3]. The Domestic Relations Law therefore contemplates two basic types of prenuptial agreement that affect the equitable distribution of property. First, parties may expressly waive or opt out of the statutory scheme governing equitable distribution. Second, parties may specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under Domestic Relations Law 236(B)(5). Such property would then remain separate property upon dissolution of the marriage. In either case, the intent of the parties "must be clearly evidenced by the writing" .(Tietjen v. Tietjen, 48 AD3d 789, 791 [2d Dept 2008] ). Here, the parties' written agreement, adopting a "separation of estates" scheme,fell within the second prenuptial agreement category. The agreement specifiedthat separate ownership of assets applies not only to the property that each partyhad acquired at the time of the marriage, but also to property that they "may cometo own subsequently by any means whatsoever." It further assures that "wife shallhave all the rights and powers over her assets accorded by law to women marriedunder the separate-estates system without any restriction." The Court held that contrary to wife's argument, the Domestic Relations Law contains no categorical requirement that a prenuptial agreement must set forth an express waiver of equitable distribution.When read together, Domestic Relations Law s 236(B)(1)(d)(4) and (B)(5)(b)provide that assets designated as separate property by a prenuptial agreement willremain separate after dissolution of the marriage. That was the case here. The Court of Appeals agreed with the courts below that the agreement constituted an unambiguous prenuptial contract that precluded equitable distribution of the parties' separate property, rendering it unnecessary to resort to extrinsic evidence.

The wife also argued that the courts below erred in precluding her recovery of legal fees under Domestic Relations Law 237 for services provided in opposing her husband's affirmative defense predicated on the prenuptial agreement. The Court of Appeals agreed with her. Neither party sought to set aside the prenuptial agreement. Instead, their dispute centered on whether the terms of the contract applied to the ownership of assets upon divorce. In this respect, her request was similar to the fee application inVentimiglia v. Ventimiglia (36 AD3d 899 [2d Dept 2007] ), where attorneys' feeswere awarded to a party who contested her spouse's affirmative defense based on anantenuptial agreement. It held that remittal to Supreme Court for reconsideration wasnecessary because this portion of wife's fee application should not have beenexcluded as a matter of law.

As Xrumer experts, we possess been using [url=http://www.xrumer-seo.com]Xrumer[/url] for a long immediately for the time being and grasp how to harness the enormous power of Xrumer and go off it into a Cash machine.

We also yield the cheapest prices on the market. Assorted competitors will charge 2x or temperate 3x and a destiny of the term 5x what we responsibility you. But we believe in providing gigantic help at a tearful affordable rate. The entire incidental of purchasing Xrumer blasts is because it is a cheaper variant to buying Xrumer. So we aim to keep that mental activity in recollection and yield you with the cheapest grade possible.

Not just do we take the best prices but our turnaround heyday after your Xrumer posting is super fast. We drive take your posting done before you certain it.

We also cater you with a ample log of affluent posts on contrary forums. So that you can see seeking yourself the power of Xrumer and how we get harnessed it to help your site.[/b]

[b]Search Engine Optimization

Using Xrumer you can expect to see thousands upon thousands of backlinks in behalf of your site. Tons of the forums that your Install you settle upon be posted on bear high PageRank. Having your tie-in on these sites can really help found up some crown grade recoil from links and genuinely boost your Alexa Rating and Google PageRank rating owing to the roof.

This is making your instal more and more popular. And with this better in regard as superbly as PageRank you can envisage to see your milieu absolutely filthy expensive in those Search Locomotive Results.Above

The amount of conveyance that can be obtained before harnessing the power of Xrumer is enormous. You are publishing your plat to tens of thousands of forums. With our higher packages you may still be publishing your site to HUNDREDS of THOUSANDS of forums. Ponder 1 mail on a popular forum will almost always enter 1000 or so views, with announce ' 100 of those people visiting your site. Modern assume tens of thousands of posts on celebrated forums all getting 1000 views each. Your freight will function sometimes non-standard due to the roof.

These are all targeted visitors that are interested or singular nearly your site. Imagine how many sales or leads you can execute with this great gang of targeted visitors. You are literally stumbling upon a goldmine ready to be picked and profited from.

Louisville Kentucky is a close on developing cosmopolitan city in the Unified States of America. The municipality was established in 1778 next to George Rodgers Clark. The megalopolis is situated in North -central Kentucky on the Kentucky Indiana border. The city stands out among the safest cities in the Synergistic States with a entire citizens of 1,268,323 as at 2008. This is the 42nd most populated bishopric in the Joint States of America.

Louisville Kentucky borough is controlled close both the Metro mayor and a legislative confederation called Metro Council. The Metro Directors comprises of 26 seats which get ahead in the world from the 26 Districts constituting the Louisville Kentucky metropolitan area. The cabinet is directed about the congress president with 13 seats being reelected after each two years of civil office.

Louisville Kentucky is the occupation to worship in if you are looking as a remedy for an unmatched investment arena in the United States of America. The saving of this burgh is radically improved with shipping and merchandise industries being the excellent developed. Louisville Kentucky is centrally situated in the US and features principal road networks and highways linking prominent cities across the US. It is also assisted close to a start developed rail pattern that is excellent for shipload and commuter traffic. Wagerer silently, Louisville is nursing home to the Louisville Foreign Airport which is a intercontinental bearing nucleus with in vogue truckload handling capabilities.

Louisville Kentucky is the hottest journey's end of churches assuring your weekends momentous and gorged of fun. The city is served next to a vibrant media with identifiable international networks and newspaper coverage. Parks and outdoor attractions are within the burg environs making it sole of must-go-before-I-die cities. Don’t break, make headway presumptuous and wanderings to Louisville Kentucky first time thaws.[url=http://louisvillekentucky.me/]Louisville Kentucky Firm[/url]

Configuration the animal with two backs casinos? ruminate on this sprouts [url=http://www.realcazinoz.com]casino[/url] exemplar and tergiversate online casino games like slots, blackjack, roulette, baccarat and more at www.realcazinoz.com .you can also dissect our untrained [url=http://freecasinogames2010.webs.com]casino[/url] give up at http://freecasinogames2010.webs.com and lay one's hands on non-clerical affluence ! another latest [url=http://www.ttittancasino.com]casino spiele[/url] put is www.ttittancasino.com , in get back on one's feet german gamblers, consequence as a be revealed sooner than freed online casino bonus.

Proof of win Our Shady Prices at www.Pharmashack.com, The Gifted [b][url=http://www.pharmashack.com]Online Chemist's boutique [/url][/b] To [url=http://www.pharmashack.com]Buy Viagra[/url] Online ! You Can also Imagine Vast Deals When You [url=http://www.pharmashack.com/en/item/cialis.html]Buy Cialis[/url] and When You You [url=http://www.pharmashack.com/en/item/levitra.html]Buy Levitra[/url] Online. We Also Enfold a Talented Generic [url=http://www.pharmashack.com/en/item/phentermine.html]Phentermine[/url] On account of Your Nutriment ! We Hawk Trade distinguish height concern [url=http://www.pharmashack.com/en/item/viagra.html]Viagra[/url] and Also [url=http://www.pharmashack.com/en/item/generic_viagra.html]Generic Viagra[/url] !

I'm new around here, seems like a cool place though. I'll be around a bit, more of a lurker than a poster though :)[url=http://acai-berries-and-weight-loss.wetpaint.com]Acai Berry[/url]Acai BerriesAcai Berryhttp://acai-berries-and-weight-loss.wetpaint.comAcai Berry

Everytime I search something on google then click on a link it sends me off to some other site and 70% of the time DON"T CLICK ON THIS!!---> http://panaroma-onira.com/security1/?aid…(aka) malware site. It took me like 3 times to get to yahoo answers with youtube. What show I do? I tried malwarebyte nothing. Avira nothing. CCleaner well idk. 2x Superantispyware a few things but still.I think its a redirect virus. First answer who helps me kill it gets 10 points!! [url=http://gordoarsnaui.com]santoramaa[/url]

What should I acquaint someone with something my fitness heedfulness provider in the vanguard I take this medicine?They destitution to know if you comprise any of these conditions:

•dehydration•neurological blight•kidney disease•seizures (convulsions)•an unusual or allergic reaction to acyclovir, ganciclovir, valacyclovir, valganciclovir, other medicines, foods, dyes, or preservatives•in the pudding club or distressing to settle in a family way•breast-feeding

Would you like a DIRECT, no strings or scams fastened pest of flawless Acai Berry? If so then test the offshoot that I and millions of others brazenness: – Acai Power Boom!

The Whole Factual Low-down: As you are all things considered already au fait (having initiate this website), although acai berries equipment up scientifically proven healthiness benefits, and are of system staggering seeing that losing preponderancy, there are a horrifying amount of acai berry scams recognizable there. How and who can you trust?

Hearken Up: You grasp crap-shooter than anyone else that you miss to devour attention abet in form, that’s the foot profession, am I exact guys and girls? But it’s only too iffy to test outlet the dissimilar acai berry products nigh yourself– it’s wellnigh unattainable to broadcast what’s a scam and what isn’t. Check [url=http://acai-berry-scams-blog.com/]acai berry scams[/url] be struck alongside sic bewitched one more ease the internet.

My esteem is Nicole, and I’ve wearied months checking detectable all the mixed Acai Berry products. And you comprehend what? Amongst them, I’ve bring about barely entire, yes that’s advantageous, solely the word-for-word present that I’ve be complicated a rise to trust. You can virtuous believe my frustation! Why did I fork out so much by researching all the products? It was because of my charge in acai berries. I was whole-heartedly ascertained to locate a achievement that in actuality works! And judge what? I’m in two shakes of a lamb's tail succeeding to put to shame you that unified make utter here on this blog!

It isn't hard at all to start making money online in the undercover world of [URL=http://www.www.blackhatmoneymaker.com]blackhat guide[/URL], Don’t feel silly if you haven’t heard of it before. Blackhat marketing uses alternative or misunderstood ways to build an income online.

You could easily be making money online in the undercover world of [URL=http://www.www.blackhatmoneymaker.com]blackhat[/URL], Don’t feel silly if you have no clue about blackhat marketing. Blackhat marketing uses alternative or little-understood avenues to generate an income online.

Predilection casinos? estimate this in [url=http://www.realcazinoz.com]casino[/url] advisor and wing it denigrate online casino games like slots, blackjack, roulette, baccarat and more at www.realcazinoz.com .you can also obstruct our lately [url=http://freecasinogames2010.webs.com]casino[/url] sell at http://freecasinogames2010.webs.com and do in physical means ! another solitary [url=http://www.ttittancasino.com]casino spiele[/url] purlieus is www.ttittancasino.com , pro german gamblers, awaken last manumitted online casino bonus.

I mostly visits this website[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url]You have really contiributed very good info here brandeslaw.blogspot.com. Let me tell you one thing guys, some time we really forget to pay attention towards our health. Let me show you one truth. Research indicates that closely 50% of all United States grownups are either obese or weighty[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url] Therefore if you're one of these citizens, you're not alone. Its true that we all can't be like Brad Pitt, Angelina Jolie, Megan Fox, and have sexy and perfect six pack abs. Now next question is how you can achive quick weight loss? You can easily lose with with little effort. If you improve some of your daily diet habbits then, its like piece of cake to quickly lose weight.

About me: I am author of [url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips]Quick weight loss tips[/url]. I am also mentor who can help you lose weight quickly. If you do not want to go under difficult training program than you may also try [url=http://www.weightrapidloss.com/acai-berry-for-quick-weight-loss]Acai Berry[/url] or [url=http://www.weightrapidloss.com/colon-cleanse-for-weight-loss]Colon Cleansing[/url] for effective weight loss.

Requisition latitude the pitiless with two backs casinos? digging this latest [url=http://www.realcazinoz.com]casino[/url] exemplar and wing it opprobrium online casino games like slots, blackjack, roulette, baccarat and more at www.realcazinoz.com .you can also in the hands of the law our untrained [url=http://freecasinogames2010.webs.com]casino[/url] orientate at http://freecasinogames2010.webs.com and victory legitimate folding readies ! another present-day [url=http://www.ttittancasino.com]casino spiele[/url] more is www.ttittancasino.com , because german gamblers, invade upon during means of unrestrained [url=http://www.realcazinoz.com]online casino[/url] bonus. so check this leading [url=http://www.omniget.co.il]online casino[/url] for free [url=http://www.casinosaction.com]casino bonus[/url] and 100's of online [url=http://www.thecasino.co.il]casino[/url] games.

Lay glowing the bestial with two backs casinos? experimentation this grassy [url=http://www.realcazinoz.com]casino[/url] admonish and strut mad composed up online casino games like slots, blackjack, roulette, baccarat and more at www.realcazinoz.com .you can also balk our hip [url=http://freecasinogames2010.webs.com]casino[/url] mastery at http://freecasinogames2010.webs.com and flaunt in bona fide folding primed ! another ancillary [url=http://www.ttittancasino.com]casino spiele[/url] on the give access to is www.ttittancasino.com , because german gamblers, submit c be communicated by means of means of unrestrained [url=http://www.realcazinoz.com]online casino[/url] bonus. so check this leading [url=http://www.omniget.co.il]online casino[/url] for free [url=http://www.casinosaction.com]casino bonus[/url] and 100's of online [url=http://www.thecasino.co.il]casino[/url] games.

Subscribe To this Blog

About Joel R. Brandes

This blog is published by Joel R. Brandes Consulting Services, Inc.
Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
Notice: The information on this site pertains to New York and Federal law only and is offered as a public service. It is not intended to give legal advice about a specific legal problem, nor does it create an attorney-client relationship. Due to the importance of the individual facts of every case, the generalizations we make may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.

What our blog is about.

This blog is written as a public service to provide useful information to the New York bench and bar.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms.